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Butt v. Malik

Supreme Court of New York, Second Department

May 15, 2013

Mian Karamat Ullah Butt, respondent,
v.
Mohammad Aslam Malik, et al., appellants. Index No. 27702/11

Andrew Moulinos, Astoria, N.Y., for appellants.

Wenig Saltiel LLP, New York, N.Y. (Meryl L. Wenig and Leslie Perez-Bennie of counsel), for respondent.

PETER B. SKELOS, J.P. THOMAS A. DICKERSON PLUMMER E. LOTT SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that a certain deed is void and that the plaintiff is the sole owner of certain real property, the defendants appeal from an order of the Supreme Court, Kings County (Baynes, J.), dated February 29, 2012, which granted the plaintiff's motion for a preliminary injunction enjoining the defendant Mohammad Aslam Malik, his employees, servants, agents, and "all other persons acting on behalf of or in concert with them" from collecting the "rent, profits or payments" from the tenants or occupants of the subject premises during the pendency of the action.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the fixing of an appropriate undertaking pursuant to CPLR 6312, if the preliminary injunction is still in effect.

"[T]o prevail on a motion for a preliminary injunction, the movant must demonstrate by clear and convincing evidence (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equities in the movant's favor" (Matter of 1650 Realty Assoc., LLC v Golden Touch Mgt., Inc., 101 A.D.3d 1016, 1017-1018; see CPLR 6301; 84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 A.D.3d 702, 702; Ying Fung Moy v Hohi Umeki, 10 A.D.3d 604). "The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court" (84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 A.D.3d at 702; see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072, 1073; Ruiz v Meloney, 26 A.D.3d 485, 486).

Here, the plaintiff demonstrated a likelihood of success on the merits on his first and second causes of action for declaratory relief (see V.R.W., Inc. v Klein, 68 N.Y.2d 560, 565; Festinger v Edrich, 32 A.D.3d 412, 414; Moo Wei Wong v Wong, 293 A.D.2d 387). The plaintiff also demonstrated the prospect of irreparable injury absent a preliminary injunction (see Fairfield Presidential Assoc. v Pollins, 85 A.D.2d 653; Ansonia Assoc. v Ansonia Residents' Assn., 78 A.D.2d 211, 219-220; cf. Lombard v Station Sq. Inn Apts. Corp., 94 A.D.3d 717, 721), and that a balance of the equities weighed in his favor. Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for a preliminary injunction.

However, the Supreme Court, in granting the plaintiff's motion for a preliminary injunction, was required to direct the plaintiff to post an undertaking (see CPLR 6312[b]; Winzelberg v 1319 50th Realty Corp., 52 A.D.3d 700, 702; Ying Fung Moy v Hohi Umeki, 10 A.D.3d at 605; Hightower v Reid, 5 A.D.3d 440, 441). Therefore, we remit the matter to the Supreme Court, Kings County, for the fixing of an appropriate undertaking pursuant to CPLR 6312, if the preliminary injunction is still in effect.

SKELOS, J.P., DICKERSON, LOTT and ROMAN, JJ., concur.


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